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Allegation

1. On 11 April 2016 at Tain Sheriff Court, you were convicted of theft by opening lockfast place.

2. By reason of your conviction as set out at paragraph 1, your fitness to practise as an Occupational Therapist is impaired.

Finding

Preliminary mattersService1. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been sent in a letter, dated 1 May 2018, by first class post, to the address shown for the Registrant on the HCPC register. The Notice of Hearing was also sent to the Registrant via email on the same date. The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the Conduct & Competence Committee Rules 2003 (as amended).

Proceeding in absence2. Having determined that service of the Notice of Hearing had been properly effected, the Panel went on to consider whether to proceed in the Registrant’s absence, as permitted by Rule 11 of the Conduct & Competence Rules 2003 (as amended). The Panel was advised by the Legal Assessor and followed that advice. The Panel also took into account the guidance as set out in the HCPTS Practice Note ‘Proceeding in the Absence of the Registrant’.

3. The Panel determined that it was reasonable and in the public interest to proceed with the hearing for the following reasons:(i) The Registrant has not engaged with the regulatory process and the only communication from him has been an email, dated 9 September 2016, in which he notified the HCPC that he had been convicted of a criminal offence and a telephone conversation with the HCPC on 17 January 2017. In these circumstances, the Panel was satisfied that the Registrant’s non-attendance was voluntary and therefore a deliberate waiver of his right to attend.

(ii) There has been no application for an adjournment and no indication that the Registrant would attend on any future date. Therefore, re-listing this case would serve no useful purpose.

(iii) The Panel concluded that any disadvantage to the Registrant is limited, as the facts and grounds are not complex and are capable of being proved based on the documents alone.

(iv) The Panel was satisfied that given the serious nature of the Allegation there is a strong public interest in ensuring that this Final Hearing commences and proceeds expeditiously. In reaching this conclusion the Panel took into account the observation of Sir Brian Leveson, P in GMC v Adeogba [2016] EWCA Civ 162:

‘The fair, economical, expeditious and efficient disposal of allegations made against practitioners is of very real importance’.

Background4. On 12 September 2016, the HCPC received a self-referral from the Registrant in which he advised that he had received a conviction. The Registrant provided details of the subsequent Court order and stated he had completed the conditions of the order on 31 August 2016. The Registrant also advised that he is currently unemployed.

5. The Certificate of Conviction was received by the HCPC on 26 January 2017. It confirmed that the Registrant, on 11 April 2016 was convicted of "theft by opening lockfast place."

6. The Scottish Courts and Tribunals Service advised in a letter, dated 2 February 2017, that the Court made a Community Payback Order on 6 June 2016 as a direct alternative to a custodial sentence. The Procurator Fiscal's Office confirmed on 6 February 2017 that the Community Payback Order was for 100 hours to be completed within 6 months.

7. The HCPC received information from Police Scotland on 11 May 2017, advising of the circumstances of the conviction, and that the Registrant had made full admissions in relation to the case. The letter stated that:

‘On dates between 12/09/2015 and 14/09/15 Mr Albino broke into a bedroom of the residence in which he was a tenant, by use of a true key, and stole jewellery to the value of approximately £1000 and approximately £60 in cash. The property belonged to the owner of the residence who maintained a room within the dwelling.’

8. The HCPC Allegation was sent to the Registrant on 17 May 2017. The HCPC has not received a response to the Allegation from the Registrant.

Decision on facts and groundsPanel’s approach9. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the Particular of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.

10. In reaching its decision the Panel took into account the documentary evidence including the Certificate of Conviction. The Panel also took into account the HCPTS Practice Note entitled ‘Conviction and Caution Allegations’. The Panel was aware that in accordance with Rule 10(1)(d), it could not go behind the conviction and was required to accept the certification from Tain Sheriff Court as conclusive proof of the conviction itself and the underlying facts.

Particular 1 – found proved‘On 11 April 2016 at Tain Sheriff Court, you were convicted of theft by opening lockfast place.’11. The Panel was provided with a Certificate of Conviction in the name of Carlos Albino, which was signed by an officer of the court. The Panel accepted the Certificate of Conviction as conclusive evidence that the Registrant was convicted of theft on 11 April 2016.

12. The Panel was therefore satisfied that the facts and grounds have been proved.

Decision on impairmentPanel’s approach13. The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the submissions of Mr Mason, on behalf of the HCPC. The Panel also took into account the HCPTS Practice Note on ‘Finding that Fitness to Practise is Impaired’ and the HCPTS Practice Note on ‘Conviction and Caution Allegations’. The Panel accepted the advice of the Legal Assessor.

14. In determining current impairment the Panel had regard to the following aspects of the public interest: • The ‘personal’ component: the current behaviour of the individual registrant; and • The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

Panel’s decision15. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.

16. The Registrant’s theft conviction demonstrates a course of conduct which was dishonest and in breach of his landlord’s trust. The Panel noted that the monetary value of the jewellery was significant and that such personal items are likely to have a sentimental value. The Panel also noted that the 100-hours of community pay back was imposed as a direct alternative to a custodial sentence and therefore the court must have determined that the offence exceeded the custody threshold.

17. The Panel recognised that demonstrating remediation following a conviction for a dishonesty offence is particularly difficult, as probity issues are based on behavioural deficiencies. The Panel noted that the Registrant pleaded guilty at an early stage of the criminal proceedings but as there was only limited information available the Panel was unable to assess whether this demonstrated a degree of insight or was an inevitable consequence due to the strength of the evidence. However, the Panel did accept that in the Registrant’s email, dated 9 September 2016, he indicated of a degree of insight. He stated, ‘I can only apologise for my mistake and sorry for not letting you know sooner. Im aware of the consequences and understand the need to be struck off from register (sic).’ Although the Panel acknowledged that the Registrant had some insight it was insufficient to meet the nature and gravity of his theft conviction. As there has been no engagement from the Registrant during these proceedings the Panel was unable to assess the scope and level of the Registrant’s insight. There was no evidence before the Panel, despite his assurance, that the Registrant fully appreciated the consequences of his actions or that the Registrant had properly reflected on the impact of his behaviour on his profession which legitimately expects high standards of integrity and honesty at all times. In the absence of meaningful reflection and a commitment to remediation the Panel concluded that there was a risk of repetition.

18. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired based on the personal component.

19. In considering the public component the Panel had regard to the important public policy issues which include the need to protect the public, maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.

20. The Registrant’s conduct fell far below the standard expected of a registered practitioner. The Panel had no hesitation in concluding that it is wholly unacceptable for an occupational therapist to engage in criminal activity for personal financial gain. The Panel concluded that the Registrant’s conduct and behaviour breached a fundamental tenet of the profession, brought the profession into disrepute and his dishonesty demonstrated a lack of integrity. The Panel took the view that, in the absence of any evidence to the contrary, there is an on-going risk that these aspects of the Registrant’s behaviour would be repeated.

21. The Panel concluded that a reasonable and well-informed member of the public would be extremely concerned by the Registrant’s dishonest conduct. The public have a legitimate expectation that all HCPC registered professionals are honest and trustworthy. As a consequence, the Panel was satisfied that public confidence in the profession and in the HCPC as a regulator would be undermined if a finding of fitness to practise was not made, given the seriousness of the Registrant’s dishonest conduct and behaviour.

22. The Panel concluded that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.

Decision on sanctionPanel’s approach23. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator and by upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

24. The Panel had regard to the Indicative Sanctions Policy (ISP) and took into account the submissions made by Mr Mason on behalf of the HCPC.

Panel’s decision25. The Panel considered the aggravating and mitigating factors in determining what sanction, if any, to impose.

26. The Panel identified the following mitigating factors:• the Registrant referred himself to the HCPC;• he made full admissions during the criminal proceedings;• he expressed remorse, apologised and demonstrated a limited degree of insight in his email, dated 9 September 2016;• there is no evidence that any other adverse findings have been recorded against him;• he successfully completed the 100-hour community pay back order; • no service users were put at risk of harm as a consequence of his actions.

27. The aggravating factors identified by the Panel were as follows:• there has been only limited engagement during the investigation stage and no engagement during the oral proceedings;• the theft offence was committed in breach of trust;• there is absence of full and meaningful insight;• there is an ongoing risk of repetition.

28. The Panel first considered taking no action. The Panel concluded that in view of the nature and seriousness of the Registrant’s dishonest behaviour and in the absence of exceptional circumstances, to take no action on his registration would be inappropriate. Furthermore, it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

29. The Panel then considered a Caution Order. The Panel noted paragraph 28 of the ISP which states:

“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.’

30. Although the Panel acknowledged that the Registrant’s conduct may have been isolated and out of character, it concluded that his actions could not be described as minor in nature. In view of the Panel’s findings that the Registrant has demonstrated only limited insight, the risk of repetition and given the serious nature of his conduct and behaviour, the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest.

31. The Panel went on to consider a Conditions of Practice Order. The Panel noted that the ISP states at paragraph 33:

‘Conditions will rarely be effective unless the registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases: • where the registrant… lacks insight…; • where there are serious… failings; or • which involve dishonesty [or] breach of trust….’

32. The Panel acknowledged that a conviction for theft of money and jewellery will not usually be amenable to a Conditions of Practice Order, as the basis for this type of conduct is an attitudinal failing. In any event, the Panel concluded that, in the circumstances of this case, given the nature of the Registrant’s conduct and the absence of meaningful insight, conditions would not adequately address the serious nature of the Registrant’s conviction and so would undermine public confidence in the profession and undermine the need to uphold standards of conduct and behaviour.

33. The Panel next considered a Suspension Order. A Suspension Order would send a signal to the Registrant, the profession and the public re-affirming the standards expected of a registered Occupational Therapist. However, the Panel noted paragraph 41 of the ISP which states:

‘If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option. However, where there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate.’

34. The Registrant has demonstrated only minimal insight into his dishonest behaviour and has not taken the opportunity to persuade the Panel that meaningful lessons have been learnt from the experience to the extent that the conduct is firmly in the past and will not be repeated. The Panel concluded that there was no evidence that the Registrant was either willing or able to resolve the underlying attitudinal failures which culminated in his dishonest behaviour. In these circumstances a Suspension Order would not be sufficient to maintain public trust in the profession and the regulatory process and would not have a deterrent effect on other registrants.

35. Having determined that a Suspension Order does not meet the wider public interest the Panel determined that the Registrant’s name should be removed from the Register. A Striking Off Order is a sanction of last resort and should be reserved for cases where there is no other means of protecting the public or the wider public interest. The Panel decided that the Registrant’s case falls into this category. The Registrant’s dishonest behaviour was a deliberate act which involved a breach of trust and he has failed to take the opportunity to appear before his regulatory body to demonstrate the degree of insight necessary to justify a lesser sanction. The Panel does not consider that there is any way to protect the public other than through a Striking Off Order. Any sanction short of a Striking Off Order would fail to declare and uphold proper standards and would fail to maintain public confidence in the profession and the HCPC as its regulator.

36. The Panel had regard to the consequential impact a Striking Off Order would have on the Registrant but concluded that his interests were significantly outweighed by the Panel’s duty to give priority to the significant public interest concerns raised by this case.

37. The Panel decided that the appropriate and proportionate order is a Striking Off Order.

Order

That the Registrar is directed to strike the name of Mr Carlos Jr Albino from the Register on the date this order comes into effect.